England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2010

Mr Justice Bean :

1. The Claimants are two prisoners serving sentences of life imprisonment whose tariff period has expired. Each of them is at present a Category A prisoner. Each challenges the refusal of the Category A review team ("CART"), on behalf of the Defendant Secretary of State, not to convene an oral hearing before deciding whether to downgrade his security categorisation from A to B. Mr. McLuckie also challenges the substantive decision of the CART in his case to maintain his Category A status.

Duncan McLuckie: the facts

2. Mr. McLuckie was born on 27 March 1952. On 25 January 1989 he picked up a prostitute in his car in central Manchester. He drove her to a side street for the agreed purpose of having sexual intercourse for payment. He then deliberately and in cold blood stabbed her with a skewer causing multiple stab wounds and the throttled her using both hands. Death was due to strangulation although one of the stab wounds would have been fatal if death from strangulation had not intervened. An attaché case containing a hammer, a piece of wood, metal skewers and two ace of spades playing cards were found in his car following the offence.
3. Mr. McLuckie was convicted of murder by a jury and sentenced to life imprisonment with a tariff of 15 years. In accordance with the practice obtaining in 1989 the trial judge (Judge Prestt QC, the Recorder of Manchester) was asked to report to the Home Secretary on the case and in particular the degree of dangerousness presented by the prisoner, the likelihood of future re-offending and the factors to be taken into account when release was considered. He wrote:-

"(1) I have no reasonable doubt that the Defendant on the night of the murder left home with intention of picking up a prostitute- any prostitute- and killing her."

(2) Either immediately before, during or after the killing, the Defendant had sexual intercourse with the deceased The Defendant denied intercourse but a used condom containing semen was admitted as having been worn by him.

(3) Within a few minutes after the murder the Defendant was questioned by Vice Squad officers who were unaware of the presence of the deceased body in the car. The Defendant appeared calm and collected. He told deliberate and coherent lies in order to dissuade the police from looking into the car; he acted out a charade which involved his getting back into the car in a position which must have involved bodily contact with the dead body. At no time did the Defendant lose his composure or manifest any sign of distress.

(4) Throughout the trial the Defendant appeared wholly unconcerned by the death of the deceased; he showed no emotion whilst looking at photographs of the corpse.

(5) The only apparent motive the Defendant could have had for wanting to kill a prostitute was that, according to the Defendant, he had twice been the victim of robbery to which a prostitute was party. I quite frankly doubt if this is the explanation for what the Defendant did. One must suspect that the Defendant killed because he got perverted satisfaction from killing.

(6) I can only regard this Defendant as dangerous in the extreme and fully capable of killing again."

4. The Claimant had no previous criminal convictions but did have four disciplinary findings against him in the course of a 17 year military career. These were for negligent discharge of a weapon, fighting, using threatening language to a superior and ill-treatment of a soldier. The dates ranged from 1972 to 1988.
5. During his first 10 years in custody the Claimant had a total of 12 adjudications against him, but since 1999 his prison record has been good. He has completed the Enhanced Thinking Skills programme and the "CALM" anger management programme. However, since the expiry of his tariff period in 2004 he has remained in custody with security classification A. It is common ground that so long as a prisoner remains in Category A there is no real prospect of the Parole Board recommending his release.
6. In 2007 the Claimant's solicitors asked Dr Stephanie Hill, a consultant in forensic and clinical psychology, to interview Mr McLuckie and report. In a detailed report dated 13^th September 2007 Dr. Hill records that she had interviewed the Claimant over the course of the previous day and had had access to his parole dossier. Several pages of the report are devoted to Mr. McLuckie's account of his background history and of the index offence. In particular, he maintained that the victim had attempted to steal money from his jacket pocket; that he grabbed her arm and a struggle ensued in the course of which he stabbed and strangled her.
7. Dr. Hill wrote, in paragraphs 8.2 and 9.3-9.6:-

"Risk assessment tools for predicting sexual re-convictions are invalid in Mr. McLuckie's case as he has no convictions for sexual offences and there is no clear evidence that his offence was sexually motivated or involved a sexual component. In my view it is virtually impossible to state with confidence whether Mr. McLuckie's offence was indeed sexually motivated. Clearly this should have been a consideration given the paraphernalia found in his car at that time, but, although a sexual homicide is one explanation, it is not the only explanation…

It is my opinion that there is insufficient evidence to suggest a sexual motive for the homicide and, although it was clearly correct to raise this, the lack of evidence, Mr McLuckie's continued denials and the recent psychology assessment report that he is inappropriate for their SOTP [Sex Offender Treatment Programme] would all tend towards indicating this should not be a primary concern. Indeed, it is my opinion that the passage of time and the lack of official primary documents would suggest an impossibility in proving such a link and continual pressure upon Mr. McLuckie may result in a situation where an offender learns to say what others want him to say merely in order to progress. If there is genuine concern that this remains an active risk, then the most reliable future assessments would be through physiological means, i.e. the polygraph and/or a PPG. In my opinion there are no current grounds or concern regarding future sexual offending due to the lack of supporting evidence for this, i.e. sexual convictions, other inappropriate sexual behaviour or expression of deviant attitudes."

8. In 2009 the Prison Service commissioned a report on Mr. McLuckie from Margaret Curry, a treatment manager for the SOTP employed by HMP Frankland since 2004 and described above her signature as a "forensic psychologist in training". She was supervised for the purposes of the report by a senior colleague holding the rank of principal psychologist. She noted that the Claimant had a past record of planning violence to seek revenge. She found that he lacked insight into his own violence and failed to see any link with the other times that violence had occurred in his life which he attributes to the culture of the army or to his having been "defending himself". She wrote that, "he adopts a grievance style of thinking and seeks revenge". She suggested that a personality disorder may be present and that a referral to DPSPD (Dangerous People with Severe Personality Disorder) services may be warranted. She wrote that he had no real regret or empathy and appeared to rationalise the use of violence. She recommended a PCL-R (Psychopathy Check List - Revised) assessment. She also found that there was a serious unstable relationship pattern. She suggested that his attitudes towards women and his sexual interests may be worthy of further exploration to establish if there are any sexual interests linked to violence.
9. This report, dated 9^th July 2009 led the Claimant's solicitors to instruct Dr. Hill to assess and report further on Mr. McLuckie. They requested that consideration of his case by the Local Advisory Panel of CART should be deferred until that report was available. The LAP, however, met on 27 August and recommended that the Clamant should remain a Category A prisoner. It stated that he was not suitable for the SOTP due to his denial of any sexual element to his offence. They suggested a PCL-R assessment for a possible DSPD referral.
10. Dr Hill's second report was dated 13 September 2009. She again records that she had had access to the parole dossier. She carried out a PCL-R assessment herself and gave Mr. McLuckie a very low (i.e. favourable) overall score. She expressed the opinion that he would not meet the criteria for DSPD services. His daily management and behaviour was in her view insufficiently problematic to suggest that he represents a high and immediate danger to others, including the public in the event of escape. He did not demonstrate psychopathic personality disorder. She disagreed that there was sufficient evidence to warrant Ms. Curry's statement of a serious unstable relationship pattern. On the subject of a sexual motivation for the murder she was highly critical of Ms. Curry:-

"My first report on Mr. McLuckie focussed on an assessment of possible sexual risk and therefore treatment need. Although I agree that this should have been raised due to the circumstances of his offence, in my opinion it should now be determined either way. It is unethical and professionally unacceptable to continue to highlight this as a potential need, but then neither assess it full or accept that there is insufficient evidence and therefore allow Mr. McLuckie to move on accordingly. In my opinion the position currently maintained is professionally unsound. Thus, there is no further way of determining whether sex was a motivating factor within Mr. McLuckie's index offence. It is unacceptable to continually raise it but then offer no detailed assessment of Mr. McLuckie's sexual attitudes, behaviour etc… There is no further way of determining whether sex was a motivating factor within Mr. McLuckie's index offence; there is no magical way to determine with certainty his thoughts and beliefs 20 years ago."

11. After rejecting the suggestion for a Treatment Needs Analysis she wrote that she found:-

"……no reason why a recategorisation [from Category A] is not appropriate in terms of his management and ability/willingness to abide by rules and restrictions, and that he does not pose an immediate and high risk should he escape, of which there are no concerns."

12. The trial judge's report was undoubtedly part of the Category A review dossier considered by the CART and disclosed to the prisoner. It is not clear whether it was contained in the parole dossier made available to Dr. Hill. If she did not see it, she should have asked to do so. If she did see it, then her failure to engage with it seems inexplicable on any basis other than blinkered partisanship. In either event her characterisation of those who disagree with her and who highlight the potential need for sex offender treatment in Mr. McLuckie's case as "unethical", "professionally unacceptable" or "professionally unsound" is in my view wholly misconceived.
13. On 21 October 2009 a member of the Parole Board directed that the case should proceed to an oral hearing before the Board. Because of the delays affecting the Board, no date has yet been notified for that hearing. The Claimant's solicitors sent Dr. Hill's further report to CART with a covering letter drawing attention to their client's "very low PCL-R score" and asking for the case either to be returned to the LAP to reconsider their recommendation or to be referred to the Director of High Security Prisons to make a determination.
14. The CART decided that the Claimant should remain a Category A prisoner. They found that he had no insight or change of attitude relating to his highly violent offending. They were not convinced by his accounts of his actions and considered that to some extent he remained unwilling or unable to accept full responsibility for his capacity for violence. They did not accept that his overall risk assessment before or then depended on his suitability for work to address sexual offending. They considered that even Dr. Hill's two reports suggested that the Claimant's potential dangerousness on release remained high.
15. After correspondence in which the Claimant's solicitors challenged the reasoning of CART and argued that it was unreasonable to have reached a decision without holding an oral hearing, proceedings were issued on 3 February 2010.

The substantive decision not to recategorise Mr McLuckie

16. For the Claimant, Phillippa Kaufmann submits that:-

"The primary reason that the CART decision was unlawful is because it was based on the highly material mistake of fact that the Claimant had not undergone a PCLR assessment. In fact the assessment had been completed by Dr. Hill as set out in her 2009 report…………..The CART wrongly assumed that there was not yet any answer to the question whether the Claimant was a psychopath or had a personality disorder……….In the face of Dr. Hill's report there were two options reasonably open: either, accept Dr. Hill's report and proceed to assess risk on the premise that the Claimant has no personality disorder or psychopathic traits, or test Dr. Hill's assessment. The latter option required the Team to hear from Ms. Curry. The clear failure of the CART to appreciate the true circumstances disclosed by Dr. Hill's 2009 report means that they did neither. They therefore failed to take account of material which was highly relevant to an assessment of risk, and made their decision on the basis of a mistake of fact. Their decision was both unreasonable and unlawful."

17. Ms Kaufmann further argues that while it is open to the CART to prefer the view of one expert over another, the preference for Ms. Curry's report was "without rational foundation, in the fact that there were strong indicators that Dr. Hill's reports are the more reliable."
18. I reject these submissions. Dr. Hill's reports seem to me to be fatally flawed. She did not take into account the fact that the Claimant's evidence had been rejected by the jury and either ignored or did not have available to her the findings of the trial judge who had heard him give evidence. Mr McLuckie's case as outlined, no doubt persuasively, to Dr. Hill was that he killed his victim in a flash of anger when she was attempting to steal from him. The judge's view was, however, that he had left home with the intention of picking up a prostitute – any prostitute – and killing her; that either immediately before, during or after killing he had had sexual intercourse with her; that throughout the trial he appeared wholly unconcerned by the death of the deceased; and that there was a suspicion that he had derived perverted satisfaction from killing. The judge regarded the Claimant as dangerous in the extreme and fully capable of killing again. Against that background the CART were fully entitled to prefer Ms Curry's report to those of Dr Hill, and also to attach little if any weight to the PCL-R assessment carried out by Dr. Hill and the conclusions that she drew from it. I therefore reject Mr. McLuckie's application for judicial review of the substantive decision of the CART.

Donald Mackay: the facts

19. Donald Mackay was convicted of murder in December 1989 and sentenced to life imprisonment with a tariff set at 20 years. The offence came to light when police discovered the decomposing remains of the victim in a bin-bag in the Claimant's flat. She was a prostitute who had visited his flat sometime earlier. Death was due to asphyxiation following the infliction of multiple injuries to the face and severe injuries to other parts of the body. The police had called at Mr Mackay's flat following a complaint of assault, false imprisonment and forcible buggery from another prostitute who had come to the flat after the death of his first victim; he was also convicted of offences against her.
20. At the trial his defence to the murder charge was that the victim had arrived at his flat complaining of assault by a client. He went out to the shop in the morning and returned to find her dead. In the case of the complaints by the prostitute who survived he denies committing any offences against her. He alleged that they had intercourse by consent.
21. Mr. Mackay had previous convictions for offences of violence culminating in a conviction for manslaughter in 1984: he had killed a man with a sword in a drunken brawl and was sentenced to five years imprisonment.
22. In Mr. Mackay's case, unlike that of Mr. McLuckie, there was an oral hearing before a panel of the Parole Board in 2009. The Board had before them a report commissioned by the Claimant's solicitor from a consultant psychiatrist, Dr David Somekh, who considered that there was no good evidence to support the notion that the Claimant should remain in category A conditions. They also heard oral evidence from Mr. Mackay himself, a psychologist, Tracey Brookes, and his offender supervisor, Karen Ferraby. The Claimant was represented by his solicitor, Mr. Michael Purdon, who also acts for him in this court and who has substantial experience of prison law. Mr. Purdon did not seek a direction for release or a recommendation for transfer to open conditions: neither of these propositions would have been realistic given that Mr. Mackay still had a Category A classification (see R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277 per Rose LJ at 280). Mr. Purdon did, however, invite the Panel to comment on his client's progress.
23. The Board wrote to Mr. Mackay on 23 July 2009 with a decision (unsurprisingly) that he should remain in closed conditions. They wrote:-

"You are an enhanced level prisoner and have been adjudication free for many years.

You have consistently denied your guilt for the index offences, saying that the deceased victim died of natural causes.

In relation to the second victim you claimed that all sexual activity was consensual.

The panel were concerned that, during your evidence, whilst accepting some of the facts of the case, your own description of events minimised your culpability to a disturbing degree.

Similarly, your accounts of your previous offending showed a lack of insight into the nature and degree of your violent behaviour.

The panel were also of the view that you saw yourself as the principal victim of events and are concerned that such grievance thinking may impact on your motivation to change.

Whilst acknowledging that since the last review period you have done some work to address some of your risk factors and have behaved well in prison the panel felt that there has been no significant reduction in your level of risk.

Ms. Brookes informed the panel that the criteria for admission to the core SOTP had changed so that a denial of sexual offending was no longer a barrier as long as there was some acceptance of sexual contact.

The panel would support any work that might be achieved in this area.

Ms. Ferraby said that she supported a proposal that you be moved to a Category B training prison.

The panel felt that this may be a constructive move.

In conclusion the panel concluded for the reasons set out above that you should remain in closed conditions to complete more work aimed at reducing your risk."

24. Following the Parole Board's review a sentence planning review was held. It concluded that the only fresh offending behaviour work needed to undertake was the SOTP. It noted that the Claimant had previously refused to undertake that program as he maintained that he was not a sex offender. However, it appeared that he was now willing to discuss this possibility with a psychologist. (I was told by Mr. Southey QC that Mr. Mackay has more recently been assessed as unsuitable for the SOTP).
25. In advance of the sentence planning review the Claimant's solicitors argued that an oral hearing should be held. By a decision of 26^th November 2009 the Secretary of State rejected the representations made in support of re-categorisation and decided that the Claimant should remain at Category A. The letter stated:-

"The Category A Team noted your representations requested in oral hearing, but was satisfied there were no special circumstances that warranted such an exceptional procedure… The Category A Team noted Parole Board reviews relate to your suitability for supervised release or transfer to open conditions. It noted that they are also perhaps dynamic or idealistic in nature and will seek to promote a prisoner progress through testing in less secure conditions."

26. The sentence just quoted seems to me to show a rather patronising attitude to the Parole Board. At any rate, following an appropriate letter before claim, proceedings were issued challenging the failure to hold an oral hearing.

Oral hearings – the law

27. There was no dispute between counsel about the principles to be applied. The common law duty of procedural fairness may require the decision makers to hold an oral hearing. Such a hearing is not required in every case, and what fairness requires in a particular case is fact specific. It is for the court to decide what fairness requires, and the issue on judicial review is whether the refusal of an oral hearing was wrong, not whether it was unreasonable or irrational.
28. In R (Williams) v Secretary of State for the Home Department [2002] 1 WLR 2264 the claimant, as in the present case, was a post-tariff lifer classified as Category A. After an oral hearing the Parole Board recommended that a move to conditions of lower security was justified, in terms of acceptable risk and so that the further work necessary for his progress towards eventual release could be done. Six months later his request for re-categorisation was rejected by the Category A Committee, which refused his request to attend the hearing and also to receive full disclosure, not just the gist, of the reports before the committee. Judge LJ (as he then was), giving the judgment of the court, said:-

"The Category A Committee is concerned with the risks posed to the public by a prisoner who escapes, something which may occur unexpectedly, at any time. If he escapes, and while he remains at large, the prisoner is uncontrolled and unsupervised, temporarily, at least, untraceable, on the run, subject therefore to the inevitable increased stresses on an individual who, by definition has not yet satisfied the panel that it would be safe for him to be released on licence.

In summary, the panel is concerned with the protection of the public following a supervised conditional release of the prisoner, whereas the Category A Committee or review team concentrate on the risks to the public posed by an escape. This is a difference of substance. They address the same broad issue – public safety – but they are resolving a different problem. There is no statutory, or any other basis for concluding that one decision-making body has priority over the other, or that the judgment of one is binding on the other. Indeed in our view it is an inevitable consequence of two distinct processes, addressing linked but different questions, that apparent inconsistencies of decision may occasionally happen."

29. After stating that the views of the Board on categorisation, however strongly expressed, are not and cannot be determinative of the decision on categorisation by the Category A Committee or review team, Judge LJ said:-

"(30) This does not produce the lamentable consequence that the recommendations of the panel are irrelevant to the categorisation decision, or indeed the decision-making process. It was rightly accepted that these must always be considered by the review team. Our attention was focused on the adequacy, or otherwise, of the process adopted in this case.

(31) Apart from the disquieting impression that the two decision-making bodies concerned with this claimant were not working with the same material, the risk highlighted by this appeal is circularity. The post-tariff discretionary life prisoner may be trapped in an unending process. This risk is mitigated by recognising that there are exceptional cases in which (subject to public interest immunity issues) the material available to the review team, in particular the reports on him, rather than their gist, should be disclosed and the prisoner permitted an oral hearing. The successful operation of this system depends on the review team, and since January 2001 the head of the Category A review team, correctly identifying the case or cases which should be regarded as exceptional.

(32) …..Once notice of the panel's decision had been received, the review team should have recognised an obvious prospect of a major inconsistency between their respective conclusions. An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the claimant and for the contents of any adverse reports to be directly addressed. In the final analysis the review team would, of course, have reached its own decision, but an oral hearing, and proper disclosure, would have ensured that the decision was the result of a better informed process, and the conclusions, and the reasons for them, would then have been received with correspondingly greater confidence."

30. Mr. Southey submitted, and Mr. Matthew Slater for the Secretary of State accepted, that the use of the adjective "exceptional" in this passage of Judge LJ's judgment reflects not a requirement to show exceptional circumstance, but rather an expectation that cases requiring an oral hearing will be few and far between: see per Keith J in R (Yusuf) v Secretary of State [2010] EWHC 1483 (Admin) at paragraph 25.
31. In R (Smith and West) v Parole Board [2005] 1 WLR 350 Lord Bingham of Cornhill said:

"The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or another) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."

32. The Smith and West case was concerned with the recall of determinate sentence prisoners who were in breach of their licence. In R (H) v Secretary of State for Justice [2008] EWHC (Admin) 2590 Cranston J had to consider an application by a claimant who, like Mr McLuckie and Mr Mackay, had been refused an oral hearing during the review of his Category A status. The claimant was past his minimum term or tariff period and accordingly his liberty was in issue. There was an apparent inconsistency between the local prisons recommendation that the claimant should be recategorised and the final conclusion of the Secretary of State that he should not be. The claimant was detained in a protected witness unit. Allowing the claim for judicial review, Cranston J said:-

"Procedural fairness sometimes demands an oral hearing. There can be greater confidence with an oral hearing that the relevant standards have been properly applied and that the facts on which the decision is based are accurate. The oral hearing also gives the person affected by the decision the opportunity to tailor the arguments to the concerns of the decision-maker. The interests at stake are such as to trump other factors in the balance such as cost and perhaps efficiency. It is clear that procedural fairness does not impose the straitjacket of a quasi-judicial process and more informal procedures than what one expects before the Courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process."

The impasse issue

33. Finally on the law, I should refer to what may be described as the impasse issue. Mr. McLuckie denies that there was any sexual element to his offences and more generally minimises his guilt. Mr. Mackay contends that he should not have been convicted in 1989 at all. In R v Parole Board & Secretary of State for the Home Department ex parte Oyston, 1^st March 2000, unreported, BAILII: [2000] EWCA Crim 3552, Lord Bingham of Cornhill CJ said (at paragraph 43):-

"Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit to having offended they will only undertake not to do in the future what they do not accept having done in the page. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future. Even in such cases, however, the task of the Parole Board is the same as in any other case: to assess the risk that the particular prisoner if released on parole, will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credence to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole."

34. However, as Elias J rightly observed in R (Roberts) v Home Secretary [2004] EWHC 679 (Admin) at paragraph 39:-

"(39) There is a very real difficulty facing the review team in cases of this nature. The guilt of the prisoner must be assumed. That is what the review team properly did here. The review team must then assess the nature of the risk in the event of an escape. Where the index offences are so grave, as they inevitably will be in category A case, the review team can justifiably require cogent evidence that the risk has diminished.

(40) That evidence will, in the normal way, be most cogently demonstrated by the prisoner participating in courses and programmes which are directed to the specific offences, so that there can be some self-awareness into the gravity and consequences of his conduct. However, it is a condition of a number of these courses that the prisoner must admit his guilt. That is so, I am informed, for the Sex Offences Treatment course, the CALM course (controlling anger and learning to manage it) and the CSCP course (cognitive self change programme). By not participating in such courses or programmes the prisoner inevitably makes the task of the review team more difficult, and in some cases practically impossible.

(41) It must be recognised that this compounds the injustice for anyone who has suffered the grave misfortune to be wrongly committed of such terrible crimes, and there will inevitably be such people. It puts pressure on the innocent to admit guilt in order to facilitate release, or, alternatively to serve a longer sentence than they would have had to do had they committed the crime and felt properly able to admit guilt. But that seems to me to be inevitable, the system cannot operate unless the verdict of the jury is respected.

(42) Moreover, on very, very many more occasions defendants deny guilt for offences which they have in fact committed, for a whole variety of reasons. Given that the danger must be presumed from the nature of the index offence, it is plainly a proper requirement that there should be cogent evidence in the diminution of risk if the safety of the public is to be secured. No doubt to those in denial the recitation by a review team that being in denial does not of itself preclude re-categorisation may appear to have something of a mantra-like quality. There is no doubt that if they disqualify themselves from the courses which address their specific offending, it will be considerably more difficult than to be able to satisfy the review team that re-categorisation is justified. This is not, however, a punishment meted out to them because they have not committed the offences, but it is because by being in denial they limit – and in many cases severely limit – the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present."

The oral hearing issue: Mr. McLuckie

35. Ms. Kaufmann's submissions in favour of an oral hearing can be summarised as follows. Mr. McLuckie is a post-tariff lifer in Category A. There appears to be an impasse in his case. There is a substantial dispute between Ms. Curry and Dr. Hill about the level of risk he poses, his suitability for different types of treatment and whether he should be re-categorised.
36. I do not accept that procedural fairness requires an oral hearing before CART in his case. This is for two reasons. Firstly, as discussed above, Dr. Hill's reports are in my view seriously flawed. Secondly, there is an oral hearing pending before the Parole Board. It is unfortunate that the Board's backlog of cases has caused a delay, but that regrettable fact does not justify an oral hearing before CART. It is undesirable to have parallel oral hearings pending before the two separate bodies. If the Board were to reach conclusions favourable to the Claimant and these were to be rejected by CART without an oral hearing, the case might be different, but that is not the position at present.

The oral hearing issue: Mr. Mackay

37. Mr. Mackay is also a post-tariff lifer in Category A whose further progress is being hampered by a degree of impasse. The major difference between his case and Mr. McLuckie's is that Mr Mackay has already had an oral hearing before the Parole Board; and the Board, after hearing oral evidence and considering Dr. Somekh's report, has expressed the view that a down-grading of his categorisation would be a "constructive move".
38. Mr. Slater submits that inconsistencies of decision between the Parole Board and CART are far from exceptional. He points to the observation of Judge LJ in Williams that such inconsistencies are an inevitable consequence of the two distinct processes of the Board and CART. That is, of course, correct; but, in the passage to which Mr Slater refers, Judge LJ was considering inconsistencies of outcome. For present purposes I am concerned with fairness of the process, not of the outcome.
39. It is not for me to say on this judicial review that CART are bound to downgrade Mr. Mackay's categorisation: Mr. Southey has not contended that they are. But I do hold that the circumstances of Mr. Mackay's case, in particular the view expressed by the Board, make it necessary that CART should hold an oral hearing at which the Claimant will have the opportunity to put his case for re-categorisation. (I agree with what Cranston J said in H about the nature of that hearing.)
40. Mr Mackay's claim for judicial review of the refusal to hold an oral hearing accordingly succeeds.